Empirical Legal Studies

APSA Law & Courts 2006 Article Prize

Congratulations to Lee Epstein (Wash U/Northwestern), Daniel Ho (Stanford), Gary King (Harvard), and Jeffrey Segal (SUNY-Stony Brook), whose article, The Supreme Court During Crisis (80 NYU L Rev 1 (2005)), won the APSA Law and Courts Section 2006 McGraw-Hill Award as "the best article published by political scientists on law and courts" during 2005.  Interestingly, as Jeff Yates (Georgia) notes, Epstein et al.'s awarding-winning political science paper was published in a student-edited law review.

A New Kind of Literature Review

At the recent American Law and Economics Association Annual Meeting held in Berkeley, John Donohue and Justin Wolfers presented a compelling analysis of the deterrence effect of the death penalty -- or rather, the lack of evidence thereof. Comparing execution rates with homicide rates, as well as using the natural experiment of the Furman abolition period, and contrasting U.S. trends to Canadian trends, Donohue and Wolfers cast considerable doubt on whether the death penalty has any deterrence effect. But Donohue and Wolfers look only at whether the death penalty deters crime, not whether the death penalty affects other criminal law matters, such as encouraging defendants in murder trials to accept plea bargains with harsher terms than they otherwise would, as Ilyana Kuziemko recently showed.

But more interesting than Donohue and Wolfers substantive case -- they ultimately conclude that it is entirely unclear whether the death penalty causes more or less murders -- is their methodology. They replicate the analyses of a handful of central studies that show there is a deterrence effect, and run a variety of robustness checks on each. As such, their paper provides a comprehensive re-examination of the primary data on the deterrence effect of the death penalty on crime.

Do Attorneys Add Value?: Evidence From Tax Court Litigation

A recent paper by Leandra Lederman (IU-Bloomington) and Warren Hrung (Fed. Reserve-NY) exploits unique aspects of the U.S. Tax Court to explore the possible effects of attorneys on case outcomes.  In the U.S. Tax Court, evidently, a substantial number of private litigants proceed pro se.  The Tax Court is also unique in that it retains records of settled cases (as well as, of course, tried cases).  Thus, armed with "a unique data set consisting of a random sample of settled and tried cases" the authors set out to empirically assess the influence of legal counsel on various case outcomes, including financial and disposition time (through settlement or trial).  Lederman and Hrung find, in part, that the presence of attorneys correlates with more favorable financial outcomes in tried but not settled cases.  The presence of attorneys does not influence disposition time.

Law firm starting bonus for Sup. Ct. Clerks hits $200K

The  Washington Post (via the WSJ Law Blog) is reporting that $200,000 is now the going rate for bonuses for Sup. Ct.  clerks.   Since most second-year BigLaw associates make $150K to $160K, a year at the Supreme Court is now a financial boon rather than a sacrifice:  $63,335 (what a SCOTUS clerk makes) + $200,000 = $263,335.   Is the value to the firm nonpecuniary or at least indirect--e.g., bragging rights on the number of former clerks?  Would a firm bill out a former Sup Ct clerk at a higher rate right out of the box?

It is not outside the realm of possibility that law schools, who also compete for former Sup Ct clerks, will eventually offer bonuses as well.   Granted, the external economies are different, and there is some evidence that a prestigious clerkship is not a valid predictor of the production and placement of future scholarship.  See Paul L. Caron & Rafael Gely, What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex L. Rev. 1483 (2004).   We'll see. 

Guest Blogger: Tonja Jacobi

It is with great pleasure that I introduce Tonja Jacobi as this week's guest blogger.  Tonja joined the Northwestern Law faculty in 2004, and earned her PhD in political science from Stanford University, where she wrote her dissertation on separation of powers constraints on the judiciary. She also holds a Masters from the University of California, Berkeley and a law degree from the Australian National University. Her areas of interest include judicial politics, game theory, American governmental institutions and constitutional law. Her current projects include a positive political theory of doctrine, an empirical study of the causes of litigiousness, a model of judicial signaling behavior, and a critical analysis of the use of state legislation as evidence of a national consensus in death penalty cases.

Luttig and the Distribution Tail of Lawyer Compensation

Judge Luttig's departure from the Fourth Circuit has renewed debate over judicial compensation.   Over at the W$J Law Blog, Peter Lattman cites Chief Justice Robert's 2005 statement that the low pay is a “direct threat to judicial independence" and asks whether federal judges need to make more money.  According to Ann Althouse, the clear subtext of Luttig's resignation letter is that "Federal judges are underpaid compared to their alternatives."

What does the data show?  I dug into my files to generate this chart, which appears to support the argument of lagging pay.   Obviously, there is a growing disparity between judge pay and jobs of comparable prestige in the private sector. (click to enlarge.)

Sources:  The American Lawyer, The Lawyer's Alamac

Yet, is corporate CLO and Am Law 50 partner the proper reference group?  Granted, Luttig is leaving for Boeing, and Chief Justice Roberts was a partner at Hogan & Hartson (Am Law #21 in 2003) before joining the D.C. Circuit.   But over the last twenty years, the earnings of the prototypical median law firm partner (25-29 years out of law school) have not grown nearly as fast.  Consider this chart:  (click to enlarge.)

Updated ICPSR Captial Punishment Dataset

ICPSR recently announced an update to its Capital Punishment in the United States, 1973-2004 dataset (ICPSR Study No. 4430).  (I've worked with prior versions.)  The dataset is put together and maintained by BJS (part of DoJ); ICPSR is the repository.  A summary of the dataset follows:

"This data collection provides annual data on prisoners under a sentence of death and prisoners whose offense sentences were commuted or vacated during the period 1973-2004. Information is supplied for basic sociodemographic characteristics such as age, sex, education, and state of incarceration. Criminal history data include prior felony convictions for criminal homicide and legal status at the time of the capital offense. Additional information is available for inmates removed from death row by year-end 2004 and for inmates who were executed."

In addition to the data and necessary documentation (e.g., codebook), ICPSR  also makes available ready-to-use SAS, SPSS, and Stata files.  Even those wholly uninterested in these data might wish to familiarize themselves with ICPSR's holdings.  ICPSR is a veritable treasure-trove for empiricists, including, increasingly, legal empiricists.

The Bar Exam as a measure of "competency" and "achievement"

Over at Concurring Opinions, Dan Solove discusses his recent satirical essay on the Multistate Bar Examination.  Dan’s other blog posts make clear that he favors the abolition of the bar exam. “In lieu of the Bar,” Dan writes, “states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours.”

I am somewhat skeptical of this proposal because of the agency problems that plague legal education. What law professors find interesting (and thus worth teaching) may not be a good preparation for a career as a practicing lawyer. The bar exam is at least a reference point for core substantive knowledge.  If we think it is a poor gatekeeping device, then the solution is professional engagement with state bar examiners … But most legal academics are rewarded for scholarship rather than teaching or service to the profession.  So we are back to incentives and agency problems; we complain but nothing changes. Sustained complaining is what is required, and the opportunity cost is quite high.

That said, the bar exam itself rests on some rather extravagant theoretical and empirical claims. For example, in a 1976 monograph entitled “The Relationships among Law School Predictors, Law School Performance, and Bar Examination Results,” the authors (two psychometricians from ETS) described the bar examination as “the ultimate test of competency” (p. 1). The authors also observed, “The bar examination measures, both essay and MBE, are in effect achievement tests of some the skills and knowledge developed, and tested, in law school” (p. 5, emphasis added). 

Really? Few law professors (or practicing attorneys, for that matter) would sign off on these statements.   Perhaps this statement is more accurate:  "The bar exam and the MBE are flawed, imprecise measures of competency and achievement; but they have persisted for decades with little or no change because of institutional incentives among legal educators."   This situation can be fixed, but who is going to bear the cost?
 

The Law Review Experiment

Should Eugene Volokh have received IRB approval before engaged in his law review experiment?  Dan Filler asks this question here.  As an experiment, the UCLA law professor participated in the UCLA Law Review write-on competition.

Luttig's Resignation

Judge Luttig’s letter of resignation (“effective immediately”) can be found on Boeing’s website here (via WSJ Law Blog).